Allahabad HC says divorced ladies are entitled to alimony even when they haven’t accepted alimony

The Allahabad Supreme Court has ruled that a divorced woman who does not accept permanent alimony is entitled to alimony even if the family court has issued an order for alimony under Hindu Marriage Law.

A single judge of Justice Syed Aftab Husain Rizvi passed the order while hearing a criminal appeal filed by Tarun Pandit.

The criminal appeal is against the Order of March 4, 2021 issued by the Additional Special Judge, Family Court, Gautam Budh Nagar.

By the order, the lower court granted the U/s 125 CrPC alimony application of Counterparty No. 2 (Sneha Pandit) and awarded her Rs 25,000 a month in alimony from the date of the application.

The facts are that Sneha Pandit has filed an application for maintenance U/s 125 CrPC against the revisionist Tarun Pandit, alleging that her marriage to the counterparty was contracted on 11/22/2009 and that she fulfilled her marital obligations after the marriage. After some time, the other side’s behavior was not kind to her, and he started to torture her mentally and physically. Among certain other allegations, it was further stated that the opposing party left her at her mother’s house and that she has been living with her father since 30.11.2013. The other side ignores her and doesn’t support her and is unwilling to keep her with him and has abandoned her.

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She has no source of income while the opposing party is a squadron commander in the Indian Air Force and his salary is 80,000 rupees per month. Due to the above reason, Shena Pandit requested Rs 40,000 monthly alimony.

The revisionist (opposing party) submitted its reply, admitting the marriage but rejecting the rest of the allegations and further arguing that the applicant herself was separated from her husband without good reason and that it was she who left him. The revisionist also made certain allegations against the applicant, stating that she was responsible for the whole affair and did not want to live with the other party.

Furthermore, it is alleged that the applicant misrepresented her address of Noida Gautam Budh Nagar. In fact, the applicant and her parents live at Saket Colony, Meerut District, and this is their permanent address. The address given in the application is incorrect. The applicant submitted the application with false facts that obscure the true facts and did not come with clean hands. After taking evidence and hearing the parties, the Court of Appeal granted the application and awarded maintenance.

One of the reasons the order has been challenged is that the revisionist (opposing party) raised specific objections to the jurisdiction of the Gautam Budh Nagar court, but the court made no findings as to the jurisdiction of the Gautam Budh Nagar court.

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The revisionist’s attorney claimed that the objections filed by the opposing party were specific objections and it is alleged that OP No. 2 lived with her parents at their house in Saket Colony, Meerut and not in Gautam Budh Nagar. This objection was also supported by the Order of 8/29/2016 issued by the Additional Principal Judge, Family Court, Meerut in Case U/s 24 of the Hindu Marriage Act, filed by Counterparty No. 2. The Court below has the specific Finding noted that Counterparty No. 2 resided at Saket Colony, Meerut and not at Gautam Budh Nagar. Said finding has never been challenged by Counterparty No. 2 before a higher instance and has acquired res judicata.

Therefore, the Gautam Budh Nagar Court does not have jurisdiction to consider the U/s 125 CrPC petition and the judgment and order are lacking jurisdiction, illegal and deserve to be overturned.

The lawyer also claimed that the whole criminal case was also initiated by the No.2 counterparty in Meerut and not in Gautam Budh Nagar. This clearly shows that Counterparty 2 resided permanently in Meerut and not in Gautam Budh Nagar but only to harass the Revisionist and his family members and to pressure U/s 125 CrPC to intentionally initiate Gautam Budh Nagar.

Counsel for Counterparty No. 2 argued that a review of the revisionist’s objections to the U/s 125 CrPC motion would reveal that no specific objection was raised in court including that the U/s 125 CrPC motion not be upheld is Gautam Budh Nagar District as it lacks jurisdiction.

The lawyer further claimed that the counter-affidavit referred to the defendant in detail and recorded the material to prove that she resided in Gautam Budh Nagar district. In fact, the defendant completed a course at the JP Institute of Information Technology in Gautam Budh Nagar district.

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The attorney further argued that the finding of the trial court in case U/s 24 of the Hindu Marriage Act of 29.8.2016 is based on a medical certificate issued by the doctor in Meerut district. In fact, while visiting Meerut district for an appointment in the case, the defendant became ill and had to see a doctor there. Based on the same, the court mentioned her whereabouts, which is irrelevant. There has been no reason to conclude that the Defendant resided in Meerut District and the Defendant has already produced a number of documents to show the opposite. From reviewing the objections of the revisionists (counterpart) to the application U/s 125 CrPC, it appears that there is no concrete objection that the court in Gautam Budh Nagar has no jurisdiction.

Another reason the order has been challenged is that the Meerut Family Court, the competent court for the application for divorce U/s 13 of the Hindu Marriage Act, issued the divorce judgment in favor of the revisionist and also Rs. 25 lacs as permanent maintenance U/ s 25 of the Hindu Marriage Act while the divorce decree is being passed and therefore no maintenance can be awarded U/s 125 CrPC and the application is not to be upheld.

The Revisionist’s counsel vehemently claimed that the court having jurisdiction in the application for divorce U/s 13 of the Hindu Marriage Act issued the divorce judgment dated 21.2.2016 and, at the time the judgment was passed, also awarded permanent alimony of Rs 25 lacs which was properly deposited by the revisionist in court on March 20, 2018.

Thus Counterparty #2 has Rs 25 Lacs and cannot be said to be without funds and its condition is not destitute. There can be no talk of non-supply. The Court of Appeal did not take this into account. Although an appeal against the divorce decree is pending, the said order has not been stayed. The lower court lost track when it failed to consider the legal preposition that a divorced woman can claim maintenance under U/s 25 of the Hindu Marriage Act and not under U/s 125 CrPC.

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If a divorce decree is issued under U/s 13 of the Hindu Marriage Act, the wife of such annulled marriage may claim maintenance under U/s 25 of the Hindu Marriage Act. Only the court that issued the divorce decree has sole jurisdiction to award maintenance under U/s 25 of the Hindu Marriage Act. Therefore, the order is absolutely illegal, arbitrary and against the legal principle mentioned.

“In applying the above law preposition to the facts, it is clear that OP #2 (wife) did not accept the alimony payment because she challenged the divorce decree on appeal and the appeal is pending and in the circumstances she cannot accept the amount of maintenance. So it cannot be said that she has sufficient financial resources as her perpetual maintenance has been awarded.”

“Currently she has no source of income and no financial support to support her and falls into the destitute category. The Court of Appeal dealt with the above point in its judgment and the finding that the applicant (OP No. 2) had no source of income and could not earn a living was categorically maintained and awarded alimony. The contested injunction therefore does not suffer from illegality or frailty. There is no perversity in the contested order.”

– decided the court.

“Another reason the decision was challenged is that the Court of Appeal ordered the Revisionist to pay child support from the date of filing the application, ie from 10/30/2013. In doing so, the Court of Appeal has completely lost sight of the admitted fact that OP No. 2 was paid Rs 18,900 in subsistence from the Revisionists’ salary by its branch, the Indian Air Force.

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The attorney contended that the lower court gave no reason for awarding child support as of the date the application was filed. After OP No. 2 had been paid alimony at Rs 18,900 per month from the Revisionist’s salary until March 2018, there was no reason for the competent court to grant alimony from the date of application, ie since 10/30/2013. The attorney argued that for this reason the following court decision is perverse, illegal and unsustainable. This argument is also unfounded,” the court said.

The court said that the order provides that if an amount of maintenance has been paid by the other party to the applicant, it will be adjusted and the balance paid within two months. It is undisputed that OP No. 2 was paid Rs 18,900 in alimony from the Revisionists’ salary until March 2018. After the passage of the divorce decree, the revisionist deposited the amount of alimony with the trial court and the amount of alimony paid out of the revisionist’s salary was stopped. OP #2 did not collect the alimony and is on deposit with the court because OP #2 challenged the pending divorce decree. After March 2018, maintenance will no longer be paid by the revisionist. The court has already provided for an adjustment to the amount of maintenance previously paid. So there is no illegality or frailty in this respect either.

“It is clear from the above discussion that the Order suffers from no weakness or illegality. Nor is it perverted. There is insufficient reason to set aside the contested decision. The appeal must be dismissed.”

– noted the court in dismissing the petition.