*THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD + C.M.A.No.2676 of 2002 %Dated 06.11.2009 # T.Mohan Reddy ……….. APPELLANT $ Potu Krishnaveni ………… RESPONDENT ! Counsel for Appellant : Mr. Ch.Ravindra Babu ^ Counsel for Respondent : Mr. J.Aswin Kumar < GIST: > HEAD NOTE: ? Cases referred 1. 1993 (1) A.P.L.J. 113 (HC) 2. 1994 (1)ALT 713 (D.B.) 3. 1995 (3) ALD 195 (D.B.) 4. 2002 (TLS) 1412895 HONOURABLE MR. JUSTICE B.PRAKASH RAO AND HONOURABLE MR. JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL NO.2676 OF 2002 JUDGMENT: (Per Hon’ble Sri Justice G.Bhavani Prasad) Grant of Rs.1,00,000/- to the respondent directed to be paid within two months from the date of the order by the Principal Senior Civil Judge, Ranga Reddy District, in his order in O.P.No.138 of 1994 dated 12/08/2002 led the aggrieved husband to approach this Court with this appeal. O.P.No.138 of 1994 was filed by the appellant herein against the respondent herein for divorce on the ground of the respondent herein being pregnant even before the marriage and further on the ground of her illicit intimacy with others. The respondent denied the allegation and the trial Court, after a detailed enquiry during which P.Ws.1 and 2 and D.W.1 were examined and Exs.A-1 to A- 13 and Exs.B-1 to B-4 were marked, came to the conclusion that the conduct of the respondent towards the petitioner was cruel and that the respondent deserted the petitioner. While accordingly granting divorce, the trial Court considered that the parties were going round the Court since 1994 without any chance of living together and the children born out of the wedlock were with the respondent and were dependant on her. The trial Court also noted that the petitioner married another women and that the respondent was his second wife. Considering the circumstances that the respondent has to maintain herself and also maintain her children, the trial Court felt that it was a fit case where permanent alimony can be ordered to the respondent. Accordingly, it granted Rs.1,00,000/- to the respondent. While the grant of divorce was not the subject of challenge by either party, the husband contended that without there being any issue about permanent alimony and without there being any prayer from the respondent in any manner, the trial Court erred in granting permanent alimony, more so, in the absence of any evidence in this regard. The husband also referred to the maintenance being paid by him as per the orders in M.C.No.2 of 1994 on the file of the Judicial Magistrate of First Class, Ramannapet. Sri Ch.Ravindra Babu, learned counsel for the appellant, and Sri J.Aswin Kumar, learned counsel for the respondent, are heard at length. For grant of permanent alimony in the decree, no specific application is necessary as has been decided by three Division Benches of this Court. In Mrs.C.Meena v. C.Suresh Kumar[1], the Division Bench held that a plain reading of Section 26 of the Hindu Marriage Act, 1955 makes it abundantly clear that the Court can make such provisions in the decree with respect to the custody, maintenance and education of minor children without any separate application. I n Smt.Kasibhotla Srirani v. Sri Kasibhotla Madhava Rao[2] also, it was held that what is just and reasonable depends on the facts and circumstances of each case with reference to Section 25 of the Hindu Marriage Act and the Court, based on the conduct of the parties and other circumstances of the case, if it is just, can secure payment of permanent alimony or maintenance without any application for that purpose. In Jayakrishna Panigrahi v. Surekha Panigrahi[3], it was pointed out that while allowing the application for divorce filed by the husband, maintenance can be granted to the wife without any separate application. It was also felt that the overall conduct of the parties has to be taken into account in considering the question whether Section 25 of the Hindu Marriage Act has to be invoked. The ratio of the decisions squarely applies to the facts of the present case and the order of the trial Court which is now impugned in this appeal cannot be considered to be without jurisdiction. The contrary view of the Madhya Pradesh High Court as reflected in Mahesh Prasad v. Chhoti Bai[4] sought to be relied on by the appellant hence cannot be preferred in opposition to the consistent view taken by this Court. Such adjudication even without a formal application will necessarily be in compliance with the principles of natural justice after every reasonable opportunity of hearing to both parties and taking into account the over all conduct of the parties and all other relevant facts and circumstances as disclosed by the material on record. The object and purpose of the statutory requirements under Sections 25 and 26 are to secure what seems just and proper to the Court on such consideration. There is no marginalisation of the plain language of Section 25 or Section 26 on such an understanding. Section 26 provides for making interim orders and provisions deemed just and proper “in the decree” without referring to any separate application, while “after the decree”, it requires an application by petition for the purpose. That was what in fact was laid down in Mrs.C.Meena v. C.Suresh Kumar (1 supra). Under Section 25 also, a Court may order permanent alimony and maintenance, “at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose.” This requirement of an application under Section 25 has to be necessarily understood in the context as applicable only to any request for permanent alimony and maintenance at any time subsequent to the decree. Such purposive interpretation appears to have illuminated the approach to these beneficial provisions by any Court. Refer Mayne’s Hindu Law and Usage, 15th Edition, Pages 398, 403 and 404. The respondent was aged 35 years by the time of the petition in 1994 and the couple had children through the wedlock who were in the custody of the respondent. The trial Court rightly took into account the liability of respondent to maintain and bring up the children apart from maintaining herself and made a reasonable provision in lumpsum for such purpose towards permanent alimony which is within the jurisdiction of the Court. Any grant of maintenance under Section 125 Cr.P.C. either to the respondent or to their children will have no impact on the jurisdiction of the matrimonial Court to grant such alimony as it considers relevant to the facts and circumstances of the case and on facts also, the order of the trial Court is not shown to be in any way unreasonable or disproportionate to the means and assets of the appellant. While the impugned order should, therefore, be confirmed, learned counsel for the appellant sought for six months time to pay the balance of Rs.75,000/- ordered to be paid by the impugned order as Rs.25,000/- was paid to the respondent during the pendency of this appeal in compliance with the interim order granted by this Court on 09/10/2002. Considering that the appellant is a part time employee who retired from his job, the request cannot be considered unreasonable and has to be granted. Accordingly, the Civil Miscellaneous Appeal is dismissed without costs, but the appellant is granted further time for six months from today to pay the balance of Rs.75,000/- payable under the impugned order. _________________ B.PRAKASH RAO, J ____________________ G.BHAVANI PRASAD, J Date: 06-11-2009 Note: L.R. Copy to be marked. (B/o) SKM [1] 1993 (1) A.P.L.J. 113 (HC) [2] 1994 (1)ALT 713 (D.B.) [3] 1995 (3) ALD 195 (D.B.) [4] 2002 (TLS) 1412895