Wife admits to affair in mutual divorce case, court revokes Rs 10 lakh alimony

Justice Mridul Kumar Kalita said that in an appropriate case, even an oral application for the grant of permanent alimony may be allowed.

The order added that not to speak of an application by either party, rather there was a categorical averment in the mutual divorce petition itself that neither party would pay for either any interim maintenance or any permanent alimony. The same plea was reiterated by both parties in their joint evidence on affidavit filed before the trial court in the divorce proceeding.

High court’s reasoning

• The grant of permanent alimony by the trial court, by merely stating that considering the entirety of facts and the future of the wife, does not seem to be justified, and the trial court has not taken a correct approach.
• In the instant case, the appellant is not aggrieved with the judgment and decree to the extent that it has dissolved his marriage with the wife based on an application under Section 13B of the Hindu Marriage Act, 1955, on mutual consent.
• The only grievance of the appellant is regarding the grant of permanent alimony by the trial court.
• On perusal of Section 25 of the Hindu Marriage Act, it appears that the court may grant permanent alimony on an application made to it for the said purpose by either husband or wife.
• On a plain reading of Section 25, it implies that for the grant of permanent alimony, an application is required from either of the parties. In the instant case, no such application was made by the wife.
• This court is of the considered opinion that in an appropriate case, even an oral application for the grant of permanent alimony may be allowed by the court.
• While granting permanent alimony under Section 25 of the Hindu Marriage Act, 1955, the trial court has also to consider the conduct of the parties and other circumstances of the case.

Case of mutual separation

The plea filed by the husband under Section 28 of the Hindu Marriage Act challenges the trial court order that directed him to pay Rs 10 lakh as permanent alimony.

The couple got married in 1996, as per Hindu rites and customs, and thereafter, they started living together as husband and wife, and two children were born to them. At the time of filing of this appeal, the elder son was 21 years of age, and the younger daughter was 16.

In 2021, the wife filed a case against the husband under the provisions of the Protection of Women from Domestic Violence Act, 2005. The said case was pending before the Court of Judicial Magistrate First Class. However, in 2022, the wife prayed for withdrawal of the said case on the ground that the respondent and husband had agreed to dissolve their marriage by filing an application for mutual divorce under Section 13B of the Hindu Marriage Act.

Due to various reasons, the marital relationship between the appellant and respondent became strained to such an extent that it became difficult for them to continue as husband and wife in the said marital relationship. Accordingly, they filed a joint petition under Section 13B for the grant of a decree of divorce on mutual consent.

However, while dissolving the marriage between the parties, the trial court directed the present husband to pay permanent alimony of Rs 10 lakh to the wife.