MUMBAI: Observing that a wife hadn't specifically applied for maintenance under the Hindu Marriage Act, the Bombay high court held that a family court ought not to have granted maintenance the woman and her son. On this grounds, an HC bench of Justice Vijaya Kapse Tahilramani and Justice V L Achliya set aside a maintenance order passed in a case by a family court judge.
The HC bench was hearing an appeal filed by the husband. The bench on March 6 accepted his lawyer's submission that the maintenance order needs to be set aside. The wife was not represented by any lawyer, though she had been served with appeal papers, the court observed.
The couple had married in July 2008 before the court. The husband filed for divorce on grounds of cruelty and the family court had allowed it in November 2012.
While happy that he got a divorce, the husband complained that the family court had ordered him to pay a monthly maintenance of Rs 8,000 to his wife and Rs 4,000 to their son under section 25 of the Hindu Marriage Act. He said the section provides that "only on an application being made for maintenance, the court may order payment of any amount as maintenance". Not otherwise, he argued.
The HC observed, "The crucial words are "on an application being made to the court", and said, "In the present case, it is clear that no application had been made by the wife for maintenance for herself and for the son. There are no prayers made on behalf of the wife for maintenance. In such case, the family court ought not to have granted maintenance to the wife or the son."
"In this view, the part of the judgment directing payment of permanent alimony to the wife and to the son is set aside,'' the HC held.
Section 25 of Hindu Marriage Act provides for the grant of permanent alimony and maintenance to either wife or husband while passing a decree, based on their status.
The section requires the wife or husband who seeks maintenance to make a plea during the proceedings or at any time after the decree is passed.
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The HC bench was hearing an appeal filed by the husband. The bench on March 6 accepted his lawyer's submission that the maintenance order needs to be set aside. The wife was not represented by any lawyer, though she had been served with appeal papers, the court observed.
The couple had married in July 2008 before the court. The husband filed for divorce on grounds of cruelty and the family court had allowed it in November 2012.
While happy that he got a divorce, the husband complained that the family court had ordered him to pay a monthly maintenance of Rs 8,000 to his wife and Rs 4,000 to their son under section 25 of the Hindu Marriage Act. He said the section provides that "only on an application being made for maintenance, the court may order payment of any amount as maintenance". Not otherwise, he argued.
The HC observed, "The crucial words are "on an application being made to the court", and said, "In the present case, it is clear that no application had been made by the wife for maintenance for herself and for the son. There are no prayers made on behalf of the wife for maintenance. In such case, the family court ought not to have granted maintenance to the wife or the son."
"In this view, the part of the judgment directing payment of permanent alimony to the wife and to the son is set aside,'' the HC held.
Section 25 of Hindu Marriage Act provides for the grant of permanent alimony and maintenance to either wife or husband while passing a decree, based on their status.
The section requires the wife or husband who seeks maintenance to make a plea during the proceedings or at any time after the decree is passed.
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