T. Radhika and Niveda v. Suresh Gopalakrishnan and Damayanti

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 25TH DAY OF FEBRUARY 2013/6TH PHALGUNA 1934** **Mat.Appeal.No. 780 of 2010 ( )** **-----------------------------OP.134/2006 OF FAMILY COURT, ERNAKULAM. ...............** ## **APPELLANTS/PETITIONERS:** **------------------------------------------** ## **1. T. RADHIKA, AGED 26 YEARS,** **W/O.SURESH GOPALAKRISHNAN, KRISHNAKRIPA, AYYAPPURAM, KALPATHY P.O., PALAKKAD, PRESENTLY RESIDING AT KRISHNAKRIPA, SOUTH BAVANS ROAD, ELAMAKKARA -682 026.** ## **2. NIVEDA, D/O.RADHIKA, AGED 5 YEARS, REPRESENTED BY MOTHER AND GUARDIAN RADHIKA DO. DO.** **BY SRI.P. SANTHALINGAM, SENIOR ADVOCATE. ADVS. SRI.S.SHARAN, SRI.A.D.SHAJAN.** ## **RESPONDENTS/RESPONDENTS:** **------------------------------------------------** **1. SURESH GOPALAKRISHNAN, AGED 33 YEARS, H.NO.38/1880, OPPOSITE CENTURY CLUB, P.O.VENNALA, COCHIN-28.** **2. DAMAYANTHI, AGED ABOUT 64 YEARS, W/O.LATE GOPALAKRISHNAN, NO.12, LOTUS APARTMENTS, KRISHNAKANANDHI ROAD, KOPPAM, PALAKKAD-678 005.** **BY ADVS. SRI.K.R.VINOD, SRI.K.V.ARUN KUMAR.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON 25-02-2013 DELIVERED THE FOLLOWING:** **rs.** ## **PIUS.C. KURIAKOSE & P.D. RAJAN, JJ.** ------------------------------------------Mat.Appeal No.780 of 2010 ---------------------------------------------Dated this the 25[th] day of February, 2013 ## **JUDGMENT** ## **P.D. Rajan, J.** The petitioners in O.P.No.134/2006 of the Family Court, Ernakulam are the appellants and the respondents in that O.P. are respondents in this appeal. Petitioners filed the Original Petition under Sections 24 and 25 of Hindu Marriage Act, 1955, seeking permanent alimony, return of gold ornaments and maintenance etc. The 1[st] respondent is the husband and the 2[nd] respondent is the mother. The marriage between the 1[st] appellant and the 1[st] respondent was registered on 12.11.2001 in the Sub Registrar, Koduvayoor, after that the marriage was conducted in the nearby temple as per Hindu customary rites. At the time of the marriage, the mother of the 1[st] appellant gave 25 sovereigns of gold and a sum of Rs.10,000/- to her. After the marriage, both of them lead a happy married life, but, subsequently when the 2[nd] respondent demanded more amount Mat. Appeal No.780/10 2 as dowry, the marital relationship strained. When she was unable to pay the amount she withdrawn the Fixed Deposit account and entrusted it to the respondents. In the wedlock, a female child was born to them on 18.2.2005 at Indira Gandhi Hospital, Ernakulam. In the meantime, the 1[st] respondent filed O.P. No.586/2005 for divorce which was dismissed by the Family Court. The 1[st] respondent is a Marketing Executive in the Standard Chartered Bank, Ernakulam and having landed properties at Palakkad worth rupees thirty lakh and Fixed Deposit in bank for more than ten lakh rupees. Hence, they filed the above petition for getting alimony and to return of the gold ornaments and maintenance. 2. The respondents denied the allegation and contended that the 1[st] appellant voluntarily left her house and joined with the 1[st] respondentt. They admitted that the marriage was solemnized at Sub Registrar office, Koduvayoor and no gold ornaments were gifted by the mother of the 1[st] appellant and the other contention is absolutely false. No money and house hold articles were entrusted to the 1[st] respondent and he denied the job as Marketing Executive in Mat. Appeal No.780/10 3 the Standard Chartered Bank and contended that he has no bank balance and Fixed Deposit. The gold ornaments, certificates, dress materials and personal belongings of the 1[st] appellant are in her possession and she is not eligible for any relief as claimed. She also filed additional counter statement. 3. The court below dismissed the application under Section 25 of the Hindu Marriage Act. Aggrieved by that, the wife preferred this appeal. 4. The learned counsel appearing for the appellants contended that the 1[st] appellant is entitled to get permanent alimony as claimed in the petition. The court below dismissed the claim of permanent alimony without considering the legal position. Hence, he submitted that the impugned order is to be set aside and passed permanent alimony. But, the learned counsel appearing for the respondents strongly resisted the above contention and contended that the divorce petition was dismissed by the court below and she is not eligible for permanent alimony. 5. Now the point that arises for consideration is whether the appellants are entitled to get permanent alimony Mat. Appeal No.780/10 4 as claimed. The marriage between the 1[st] appellant and the 1[st] respondent was admitted by both parties. The 1[st] respondent filed O.P.No.586/2005 in the court below for divorce and it was dismissed by the court below. After dismissing the above O.P. the 1[st] appellant claimed permanent alimony. The evidence of PW1 in the court below shows that while residing with the 1[st] respondent, he treated her with cruelty, moreover his mother misappropriated the gold ornaments and manhandled her several times. Even in the midst of this quarrel PW1 adjusted with her husband for a settled married life. Both of them undergone for counsellling, ultimately it failed. It is submitted by the 1[st] appellant that she always maintained dignity of the marriage with the 1[st] respondent and as a last resort she approached the court below with an application. 7. The Section 25 of the Hindu Marriage Act 1956 provides that permanent alimony can be granted to any of the party to a marriage at the time of passing any decree or at any time subsequent thereto. What is indicated above is that permanent alimony could be granted only when a decree is passed with substantive relief, if no request is made at the Mat. Appeal No.780/10 5 time of passing the decree, there is no bar for seeking such relief on a subsequent application. Therefore, it is clear that an application cannot be made by a party at the time of dismissal of a petition for divorce. A dismissal order of a petition for divorce could not be treated as the passing of a decree under Section 25 of the Hindu marriage Act 1955. Apex Court discussed this position in a decision in _**Chand Dhawn**_ v. _**Jawaharlal Dhawan [1993 KHC 1182],**_ it is held thus (23): 23. The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the uncodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case law developed. Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. S.18(1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life time. Sub-section (2) of S.18 grants her the right to live separately, without forfeiting her claim Mat. Appeal No.780/10 6 to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under S.9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being seize of the matter, invokes its ancilliary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfill this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to change” or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under S.9 to 14 of the Act. In other words without the marital status being affected or; disputed by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956, which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio legal scheme revolutionizing the law applicable to Hindus.” 7 Mat. Appeal No.780/10 In view of the aforesaid discussion, it is clear that the relationship between the 1[st] appellant and the 1[st] respondent is strained. The decree of divorce was not allowed by the court below. Therefore, the permanent alimony claim of the appellants was rejected by the court below. We are of the opinion that the claim of the permanent alimony is only to be rejected. Therefore, no interference and modification are necessary about permanent alimony and this appeal is to be dismissed. In the result, the appeal is dismissed. There is no order as to cost. ## **PIUS.C.KURIAKOSE,JUDGE** ## **P.D. RAJAN, JUDGE.** acd