(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 of 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.
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(2) If the Court is satisfied that there is 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.
ADVERTISEMENTS:
(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].
Scope of Amendment:
Under the old section the provision for maintenance was enforceable only while the petitioner did not contract another marriage. The amended section has dropped this requirement. The remarriage of the petitioner is now treated only as a change of circumstances to be taken into account by the court which is given discretion to vary, modify or rescind the order granting alimony.
Under the old section such order in favour of the wife was liable to be rescinded by her unchastity and such order in favour of the husband was liable to be rescinded by his extra-marital sexual intercourse. Now the amended section confers greater discretion upon the court in such cases and it can vary or modify the order instead of rescinding it.
Dismissal of divorce petition is not a bar for payment of permanent alimony. Sukdev v. Santosh, AIR 1998 Raj. 12 (DB).
“While the Applicant Remains Unmarried”:
ADVERTISEMENTS:
The italicised words may have three meanings:
(i) Not married at all;
(ii) Not married at the time of question;
(iii) Not-remarried.
ADVERTISEMENTS:
In the context of s. 25, the third meaning is intended. A.R.M. Rajoo v. Hamsa Rani, AIR 1975 Mad. 15.
The words “while the applicant remains unmarried” have been omitted by the 1976 Amendment.
A Files a Petition for Restitution of Conjugal Rights against his Wife B. The Petition is dismissed since В had Sufficient Reason to stay away, for A had taken another Wife. The Wife Claims Maintenance under Section 25:
Under s. 25 relief can be granted only at the time of “passing any decree”. Here the petition is dismissed. So in this petition maintenance cannot be granted. Darshan Singh v. Daso, AIR 1980 Raj. 102.
Permanent Alimony and Maintenance:
The application for maintenance is to be made by the “wife or husband”. However, in Rajeshbai v. Shanta Bai, AIR 1982 Bom. 231, it was held that the second “wife” whose claim as wife failed because her husband’s marriage with her was bigamous, can also apply under this section.
The court relied, apart from the provisions of s. 25 upon its inherent power to do justice. In Manjit Singh v. Savita Kiran, AIR 1983 P&H 281, it was held that a wife who by agreement with the husband has given up her right to maintenance in order to have the custody of her child cannot claim maintenance under s. 25 as that agreement stand in her way.
Permanent alimony can be granted only when a decree for divorce has been granted and not when the petition of divorce is dismissed. The words “passing any decree” in s. 25 do not cover a case of “dismissing the petition” though under the Code of Civil Procedure it may be referred to as a decree of dismissal. So s. 25 cannot be invoked after the petition for divorce is dismissed. Sushama v. Satish Chander, AIR 1984 Del. 1.
The application under s. 25 should be made only to the court which has passed the decree for divorce. Jagadish v. Bhanumati, AIR 1983 Bom. 297 (contra: Darshan v. Malook Singh, AIR 1983 P&H 28), the application may be made to any court having matrimonial jurisdiction in that matter. (This view does not seem to be sound).
Disposal of Property Section 27:
Section 27 enables the court to pass appropriate orders in regard to presents made to the bride or bridegroom which belong jointly to both husband and wife. So when the wife on dissolution of her marriage claimed the presents which were made exclusively to her, the court declined to act under s. 27. Shukla v. Brij Bhushan, AIR 1982 Del. 223.
The presents made at the time of marriage to the bride, exclusively belongs to her as “Stridhana” though they may be in the custody of the husband in their matrimonial home. The husband and his parents can be prosecuted for breach of trust if they misappropriate such property. It was so held by the Supreme Court in a case decided on 22-3-1985 overruling Vinod Kumar v. State, AIR 1982 P&H 372 (FB).
Under s. 26 the court has discretion to hand over to the mother custody of her daughter aged 9 when the girl has expressed her preference to be with the mother. Under s. 25 the court can fix 300/- as maintenance for the child when the father is earning Rs.1000/- per month. Devi Prasad v. Sandhya Devi, AIR 1985 Gau. 9. Under s. 25 (3) the court has a discretion to grant maintenance to the wife even in a case when the husband is granted divorce on the ground of her adultery. Gulab v. Kamal, AIR 1985 Bom. 88.
Non annulment of the marriage cannot be a ground for refusing maintenance to a wife, when he has contracted a second marriage and deserted his first wife. R.B. Bharatha Charyulu v. R.B. Alivelu Manga Thayaru, AIR 1996 AP 238.
Section 25 seems to provide for maintenance only to the “Husband” or “Wife”. But provision for maintenance may be made also for the children of the marriage. Narendra Kumar v. Suraj Mehta, AIR 1982 AP 100: Contra: Purushottam Das v. Puspa Devi, AIR 1982 Ori. 270.
When the maintenance amount payable is in arrears in a recent case decided by the Supreme Court, Kuldip Kaur v. Surinder Singh, AIR 1989 SC 232, it was observed, “that the liability can be satisfied only by making actual payment of the arrears. Sentencing a person to jail is a mode of enforcement. It is not a mode of satisfaction of liability”.
The Supreme Court in this case directed that the defaulting husband be put in jail till he makes the payment of maintenance allowance.
While granting a divorce under s. 13 (1) (a) of the Act, the High Court can, even without a formal application by the wife, grant appropriate maintenance to relieve further hardship. Jayakrishna Panigrahi v. Surekha Panigrahi, AIR 1996 AP 19, 24.