Amareswari, J.
1. These two Civil Miscellaneous Appeals arise out of connected proceedings. C.M.A. No. 825 of 1981 is filed against the order dt. 19-8-1981 in O.P. No. 16 of 1979 dismissing the petition filed by the husband for divorce. C.M.A. No. 324 of 1983 is filed against the order in I.A. No. 203 of 1981 dt. 12-4-83 in O.P. No. 16 of 1979 granting maintenance to the wife. In both the appeals the husband is the appellant.
2. We will first take up C.M.A. No. 825 of 1981. The parties were married on 1-6-1975 at Srikakulam. The respondent is the appellant's step-sister's daughter and is a native of Bhilaspur. The parties lived happily for a year. The case of the appellant is that the respondent was taken by her father for Dasara, one year after the marriage and never sent her back. The respondent's father was always insisting that some property should be kept in the name of the respondent and he was more interested in money than his daughter's happy marital life. In spite of repeated requests, the respondent never returned from her parents house. He seeks for dissolution of the marriage on the ground of desertion. The respondent filed a counter stating that the appellant developed illicit intimacy with one Parvathi and he had a son through her. Later he brought Parvathi and the son and they started living together in the same house. Unable to bear this, the respondent went to her parents house. She filed a petition for maintenance under Section 125, Cr.P.C., and the same was pending. The respondent stated that she left the house not on her own, but due to the intolerable behaviour of the husband.
3. The appellant examined three witnesses including himself and so also the respondent. No documents are marked for the appellant. For the respondent Exs. B-1 to B-13 are marked. On a consideration of the evidence on record, the trial Court held that there was reasonable cause for the respondent to live away from the husband and to withdraw her society, that she was not guilty of desertion, that she left the marital home as the husband kept a concubine by name Parvathi, through whom he got a child and they were living in the same house. The trial Court held that the plea of desertion is not substantiated and on the other hand, it was the appellant that was responsible for breakdown of the marriage. In reaching this conclusion, the trial Court relied upon the letters written by the appellant himself to the wife and her father in which he made several admissions that he was living with Parvathi and begot a child. The Court also relied upon the decree and judgments in several proceedings between Parvathi and her husband and ultimately the said Parvathi divorced her husband. We have gone through the evidence once again. The reasons given by the trial Judge for the conclusions reached by him are unassailable. In fact, no serious attempt is made to challenge the findings. We find no merit at all in the appeal. It is accordingly dismissed.
C.M.A. No. 324 of 1983:-
4. Subsequent to the dismissal of O.P. for divorce, the wife filed LA. No. 203 of 1981 in the same O.P. for maintenance under Section 25 of the Hindu Marriage Act. She claimed a lump sum of Rs. 50,000/- or a sum of Rs. 5007 per month towards permanent alimony.
5. The appellant filed a counter stating that the order in the divorce O.P. is pending in the High Court, that he does not own any properties and that the Court has no jurisdiction as the appeal is pending against the divorce proceedings. The trial Court by order dated 12-4-1983 allowed the petition and awarded a sum of Rs. 5007- per month for the rest of her life as long as she remains unmarried. Aggrieved thereby, the husband filed this appeal.
6. The main contention of the learned Counsel for the appellant Mr. K. Nageswara Rao is that the impugned order is without jurisdiction inasmuch as the main O.P, for divorce is dismissed. It is contended that the relief under Section 25 is ancillary to the relief sought in the main petition and the same can he given only if the main relief is granted. When the petition for divorce is dismissed, no relief can be granted under Section 25 of the Act.
7. To decide this controversy, it is necessary to refer to Section 25 and few other Sections of the Hindu Marriage Act, Section 25 is as follows : -
'25. Permanent alimony and maintenance : --
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 for 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.
(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.
(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.'
Under this Section for the first time, maintenance is provided also to the husband. Sub-section (2) provides for variation, rescission or modification if there is a change in the circumstances. Sub-section (3) imposes a condition that neither party should remarry and if the person entitled for maintenance is the wife, she should remain chaste and if it is the husband, he should not have sexual intercourse with any woman other than the wife. If this condition is violated the order shall be rescinded by the Court at the instance of the other party.
8. Thus, the main object of the Section is to provide some amount for the sustenance of parties who are unable to support themselves. Under Sub-section (1) the provision can be made at the time of passing of the decree or at any time subsequent thereto. The contention of the learned Counsel for the appellant is that the words 'at the time of passing of the decree' mean only when the petition is allowed and not when it is dismissed. It is suggested that the words 'passing of any decree' mean a decree granting the relief. As seen from Section 25 the expression used is 'at the time of passing of any decree'. The word 'decree' is not defined under the Hindu Marriage Act. Therefore, we can borrow the definition under the Civil P.C. In fact, under Section 25-A of the Act, the provisions of the Civil P.C. are made applicable for enforcement of decrees and orders under the Hindu Marriage Act, Section 2(2) of C.P.C. defines a 'decree' as a formal expression of an adjudication which conclusively determine the rights of parties with regard to all or any of the matters' in controversy in the suit and may be either preliminary or final'. Thus a decree means the expression of an adjudication. The suit or petition may either be dismissed or allowed. A relief may be given or refused. In either case, it is a decree. There is no reason to give a restricted meaning to the expression 'decree'. In this connection the word 'any' is also significant. It indicates either allowing or rejecting. Under Section 28 of the Act all decrees are made appeal able. If the contention of the learned Counsel that a decree means only granting a relief, then no appeal would lie against an order dismissing the petition as the word used in Section 28, the appeal section, is decree. But it is submitted' that Section 28 uses the words 'decree made' as distinguished from 'passing of the decree' used in Section 25. In our view it is a distinction without any difference. The expression 'at the time of passing any decree' used in Section 25 only means 'that at the time of disposal of the case'. The emphasis is on the time and this is evident from the later expression 'or at any time subsequent thereto'. The further expression that 'any Court exercising jurisdiction under this Act' also lends support to this conclusion. The intention appears to be that the Court which had the opportunity of seeing the parties and knowing the full details of the case must be vested with the power to provide for maintenance either to the needy husband or the needy wife. It is an ancillary power no doubt but ancillary to the main power of disposal of the petition. To our mind this Section from its express language empowers every Court deciding a matrimonial matter to give the relief of maintenance to either party irrespective of the fact whether the petition for any of the reliefs mentioned in Sections 9 - 13 is dismissed of allowed, whether the reliefs are granted on declined. Let us take for instance a ease where one of the parties seeks for divorce on the ground of desertion and the relief is refused on the finding that the respondent] had reasonable excuse to live separately from the other spouse. In that case would it not be just to provide maintenance for the party who is not at fault even though the main relief of divorce is dismissed. We fail to see how the court is deprived of making a provision in the decree for maintenance of the other party who is not at fault. The very case which we are dealing is an illustration. The husband sued for divorce on the ground of desertion. The petition was resisted by the wife saying that she had to live separately as the husband kept a concubine and brought her to live in the same house. The Court found that the case of the wife is true and consequently dismissed the petition of the husband for divorce. Then why not the wife ask for maintenance in the same proceeding. Why should she be driven to another Court for relief under Section 18 of the Hindu Women's Adoption and Maintenance Act or to the Magistrate's Court under Section 125, Cr. P.C. It is conceded that if the main petition for divorce was allowed, the Court would have jurisdiction to order maintenance to the wife notwithstanding the fact that she was the faulting party. Then would it not be an a fortiori case to award maintenance when the party is not at fault and the opposite party was not entitled to divorce. In this connection, we may also refer to Section 23-A, Hindu Marriage Act, which was introduced in 1976. It is as follows : --
'23-A :- Relief for respondent in divorce and other proceedings : --
In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.'
This Section enables the opposite party not only to oppose the relief of divorce, judicial separation or restitution of conjugal rights, but also (to) make a counter claim for any relief under the Act and proves that it was the petitioner who was guilty of adultery, cruelty or desertion (and) he or she is entitled to that relief. If the interpretation suggested by the learned Counsel is accepted, this Section would be rendered otiose and no relief can be given to the respondent even if the petitioner's adultery, desertion or cruelty are proved and the petition for divorce restitution of conjugal rights or judicial separation is dismissed. It is submitted that the reliefs contemplated under Section 23-A are the reliefs mentioned in Sections 9 - 13 of the Hindu Marriage Act. We cannot accept. The words used are 'any relief' which include a relief under Section 25 and if the opposite party makes a counter-claim for the relief under Section 25 while opposing the petitioner's claim for divorce this Section empowers the Court to grant such relief. The word 'any relief' occurring in Section 23-A has been held to include not only the reliefs mentioned in Sections 9 - 13, but also a relief under Section 25 of the Hindu Marriage Act.
9. In Sannaiah v. Padma. : AIR1983Kant114 a question arose whether a claim for maintenance under Section 25 would amount to a counter claim contemplated under Section 23-A. The facts are that the husband filed a petition for restitution of conjugal rights. The wife alleged cruelty by the husband and claimed permanent alimony for herself and the minor child. The husband wanted to withdraw the petition. The request was not allowed observing that under Section 23-A of the Act, the wife's claim for permanent alimony is a counter claim and the petition cannot be allowed to be withdrawn. The argument that the counter-claim contemplated under Section 23-A is divorce or judicial separation or restitution of conjugal rights and not any other relief was rejected and held that any relief includes a relief under Section 25 of the Act.
10. The intention of the legislature is clear that inasmuch as the matrimonial Court has been seized of the matter and has gone into the merits of the controversy between the parties and know who had committed the wrong and where the justice lay should be empowered to make an order of permanent alimony. The passing of any decree includes passing of dismissal of the petition and thedecree may be a decree allowing the petitionor dismissing the same. The words 'anydecree' take, in both kinds of decreesOtherwise, the words will not be any decreehut merely 'a decree'. Besides there is nomeaning in allowing the parties to go to some,other Court and start back once again: afterthey have done it before the matrimonialCourt which knows their respective strengthand can be expected to do justice especiallywhen the Court is one of the superior Courtsin the Country being a District Court or itsequivalent.
11. The learned Counsel for the appellant cited a number of decisions in support pf his contention. Hurilal v. Lilayati, : AIR1961Guj202 and Shantaram v. Hirabai, : AIR1962Bom27 . Both these decisions support the view canvassed by the Counsel for the appellant. But we find no rationale in interpreting Section 25, in that manner. In fact, the Bombay High Court very reluctantly dismissed the petition observing as follows : --
'This is undoubtedly a very unfortunate result. The conduct of the husband is blame worthy, in that, he is not making any provision for the maintenance of his wife, his children and his aged mother. Even if it is so, since the Court has no jurisdiction to grant maintenance under Section 25(1) in the absence of a decree, the order made by the learned Judge is to be set aside.'
We think that the matter is not so helpless. Section 25 does not impose any such limitations on the powers of a matrimonial Court.
12. The other rulings cited are : -
Minarani v. Dasa.rath. : AIR1963Cal428 . Shantaram v. Malti, : AIR1964Bom83 , Akasam Chinna v. Parbati, : AIR1967Ori163 , Purshotam v. Devki, , and Gurucharan Kaur v. Ram Chand, . In all these cases, it was held that Section 25 does not authorise grant of permanent alimony when the substantial relief is refused. With respect we are unable to agree with this view.
13. Then the only decision which we have to notice is Sattayya v. Amman minima. (1971) 1 Andh LT 233 as this is a Division Bench decision of this Court. The facts in this case were' that the husband's petition for restitution of conjugal rights was dismissed Thereafter, the wife and the daughter filed a suit for maintenance in the ordinary Civil Court. The suit was resisted by the husband i contending that since his application for restitution of conjugal rights was dismissed by the District Court that Court alone has jurisdiction and not the ordinary Civil Court, to entertain the suit in view of the provisions of Section 25 of the Act. This contention of the husband was negatived by the Sub Court. The Court held that the Civil Court has jurisdiction to entertain the suit. The matter was carried in appeal and the same contention was reiterated. The learned Judges while dealing with this question whether the Civil Court has jurisdiction or not held that the jurisdiction of the Civil Court is not barred. Hence the main question was whether the Civil Court's jurisdiction is ousted. No doubt, there are several observations in this Judgment which lend support to the contention advanced on behalf of the appellant. But we find that these observations are in the nature of obiter since the interpretation of Section 25 has not specifically arisen. The question was whether the Civil Court's jurisdiction is barred. Further, the provisions of Section 23-A of the Hindu Marriage Act providing for a counter-claim have not been noticed in the said judgment.
14. For the reasons stated above, we find no merit in the appeals and they are accordingly dismissed. No costs.
15. After the Judgment is delivered in these appeals, the learned counsel for the appellant made an oral application for grant of leave to appeal to the Supreme Court of India. Since a substantial question of law of general importance is involved in these appeals, we think it fit for granting leave to appeal to the Supreme Court. Leave granted.