Passing Of Divorce Decree Doesn’t Preclude Wife From Seeking Permanent Alimony U/S.25 Of Hindu Marriage Act: Madhya Pradesh High Court
The Madhya Pradesh High Court was considering an appeal filed by a wife seeking permanent alimony in a case where a divorce decree had already been passed.
Justice Ramkumar Choubey, Madhya Pradesh High Court
While dealing with an appeal filed by a woman in a matrimonial dispute, the Madhya Pradesh High Court has held that the fact that a decree of divorce has already been passed does not, by itself, preclude the wife from seeking the relief of permanent alimony under Section 25 of the Hindu Marriage Act.
The High Court was considering an appeal filed by a wife under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908, against the order passed by the Second Additional District Judge whereby her application under Order IX Rule 13 of the CPC for setting aside the ex-parte judgment passed in the matrimonial proceeding was dismissed.
The Single Bench of Justice Ramkumar Choubey held, “In view of the aforesaid legal position, the fact that a decree of divorce has already been passed does not, by itself, preclude the appellant from seeking the relief of permanent alimony under Section 25 of the Hindu Marriage Act. The learned matrimonial Court is competent to consider such application and pass an appropriate order in accordance with law, after taking into consideration the relevant factors contemplated under Section 25 of the Hindu Marriage Act.”
Advocate Pradeep Kumar Naveria represented the appellant while Advocate Rahul Kumar Tripathi represented the respondent
Arguments
It was the case of the appellant that the respondent-husband had already remarried after obtaining the decree of divorce. The appellant wife was not interested in prosecuting the matter insofar as the decree of divorce was concerned but it was her case that the matrimonial Court had not considered the question of alimony in her favour.
The husband raised the contention that if the wife was not challenging the decree of divorce and was seeking only an order for alimony, she may proceed independently before the matrimonial Court.
Reasoning
On perusal of the facts, the Bench noted that the respondent husband instituted the matrimonial proceeding against the appellant under the Hindu Marriage Act, 1955, which culminated in an ex-parte judgment. The appellant had thereafter preferred an application seeking setting aside of the said ex-parte judgment but the same was dismissed by the Court below.
Considering that the wife was not interested in prosecuting the matter insofar as the decree of divorce was concerned and was only seeking an opportunity to pursue her claim for alimony, the Bench found it unnecessary to remit the matter for restoration or further adjudication of the proceedings insofar as the decree of divorce was concerned. The Bench took note of the fact that the question of alimony in favour of the wife was not considered by the matrimonial Court while passing the judgment.
Reference was made to the judgment of the Gujarat High Court in Patel Dharamshi Premji v. Bai Sakar Kanji (1967) wherein was held that an application seeking the incidental relief of permanent alimony may be made in the main proceeding before or at the time of passing the decree granting substantive relief, or at any time subsequent thereto.
Taking note of the fact that the impugned decree did not provide for alimony, the Bench held that the appellant wife would be at liberty to file an application under Section 25 of the Hindu Marriage Act before the matrimonial Court.
Cause Title: A v. B (Neutral Citation: 2026:MPHC-JBP:68339)